BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
SB 404 (Jackson)
As Introduced
Hearing Date: April 2, 2013
Fiscal: Yes
Urgency: No
TW
SUBJECT
Fair Employment: Familial Status
DESCRIPTION
This bill would add "familial status" to the list of
characteristics (i.e., race, religious creed, color, national
origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age, or sexual
orientation) that are prohibited bases of discrimination under
the employment provisions of the Fair Employment and Housing
Act.
BACKGROUND
Various statutes, such as the Fair Employment and Housing Act
(FEHA) and the Unruh Civil Rights Act, prohibit discrimination
in employment, housing, public accommodation and services
provided by business establishments on the basis of specified
personal characteristics such as sex, race, color, national
origin, religion, and disability. Over time, these statutes
have been amended to include other characteristics such as
medical conditions, marital status, and sexual orientation.
Also over time, other statutes were amended to reflect the
state's public policy against discrimination in all forms.
One area that has experienced a significant increase in
litigation is "family responsibility discrimination" in
employment. FEHA does not directly prohibit discrimination
based on an employee's status as a family caregiver. However,
employees with family caregiving responsibilities who work full-
or part-time, job-share, use flextime, or follow some type of
(more)
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modified compressed work schedule and were subjected to adverse
employment actions have litigated against their employers using
various federal statutes. For example, Title VII of the Civil
Rights Act of 1964, 42 U.S.C.S. Sec. 2000e, which prohibits
employment discrimination on the basis of sex, race, color,
religion and national origin, has been used to protect family
caregivers in the workplace. In 1978, Title VII was amended to
expand its protections to cover discrimination on the basis of
pregnancy. That law has been of limited use in challenging
adverse employment actions arising from the need to care for or
rear a child once born. (See Piantanida v. Wyman Center, Inc.
(8th Cir. 1997) 116 F.3d 340, 342 (holding that claim of
discrimination based on plaintiff's status as a new parent is
not recognizable under the Pregnancy Discrimination Act, 42
U.S.C.S. Sec. 2000e(k)).) The Family and Medical Leave Act of
1993 (FMLA) (29 U.S.C.S. Sec. 2601 et seq.) and the Americans
with Disabilities Act of 1990 (ADA) (42 U.S.C.S. Sec. 12101 et
seq.) have also been used to protect family caregivers in the
workplace. As well, the Equal Pay Act of 1963 has provided some
basis for challenging wage discrimination faced by workers
providing family care. But for those who have tried to use
these federal laws, the challenge has proven to be difficult and
complicated and, because the family caregiving responsibility is
not directly addressed by the statutes, the path has been
tortuous.
Despite the difficulty of launching a lawsuit against an
employer for discrimination based on family caregiving
responsibilities, where the federal statutes do not directly
provide protection, there has been a significant increase in
these cases. In fact, according to a study performed by the
University of California-Hastings Center for Worklife Law, the
number of family responsibility discrimination cases increased
to 481 in the 10 years from 1996 to 2005 - nearly 400 percent
more than the 97 in the previous decade. (Stephanie Bornstein,
Robert J. Rathmell, Univ. of Cal. Hastings Center for Worklife
Law, Caregivers as a Protected Class?: The Growth of State and
Local Laws Prohibiting Family Responsibilities Discrimination
(Dec. 2009), p. 2.) These cases involve workers, both men and
women, alleging that they were discriminated against by their
employers because of their family caregiving responsibilities
ranging from raising young children, on the one hand, to caring
for elderly relatives on the other. Litigation of these cases
can be very complicated, difficult, and expensive. And,
according to articles written for employers by human resource
journals, employers are increasingly confused about the scope of
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their responsibility and exposure to liability for employment
policies or actions adversely affecting employees with family
caregiving responsibilities.
Prior attempts at providing family caregiver status protection
proved unsuccessful. SB 836 (Kuehl, 2007), which was similar to
this bill, would have added "familial status" to employment
anti-discrimination protections. SB 836 passed out of this
Committee on a 4-1 vote and was vetoed by Governor. AB 1001
(Skinner and Ma, 2009) also would have prohibited employment
discrimination based on familial status. AB 1001 died in the
Assembly Appropriations Committee. This bill is substantially
similar to AB 1999 (Brownley, 2012), which passed out of this
Committee on a 3-1 vote but was held on suspense in the Senate
Appropriations Committee.
Although FEHA prohibits discrimination on the basis of familial
status in housing (see Gov. Code Sec. 12955 et seq.), it does
not apply in the workplace. This bill, sponsored by the
California Employment Lawyers Association and Equal Rights
Advocates, would directly address the question of discrimination
in the workplace on the basis of familial status by including
"familial status" on the list of characteristics that, if used
as the basis for an adverse employment action, is prohibited
discrimination under FEHA.
CHANGES TO EXISTING LAW
Existing law, the Fair Employment and Housing Act prohibits
discrimination in housing and employment on the basis of race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital
status, sex, age, or sexual orientation. (Gov. Code Sec. 12920
et seq.)
This bill would add "familial status" to the list of
characteristics on which basis a person may not be discriminated
against in employment.
This bill would define "familial status" in this context to
include "an individual who provides medical or supervisory care
to a family member."
This bill would define "family member" as a child, parent,
spouse, domestic partner, parent-in-law, sibling, grandparent,
or grandchild, as defined in various statutes.
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This bill also would make technical and conforming changes to
various code sections.
COMMENT
1. Stated need for the bill
The author writes:
Although discrimination based on "familial status" is
explicitly prohibited under the housing provisions of the
FEHA, the same is not true under the employment provisions.
Presently, the FEHA does not adequately and explicitly protect
California workers from being discriminated against at work
based on their familial status. Yet research shows that
employees are regularly discriminated against because of
"familial status."
When used as a factor in an employment decision, . . .
stereotypes and assumptions about individuals based on their
familial status would be unlawful-as are, currently,
stereotypes and assumptions about workers based on their race,
national origin, sex, religion, marital status, and other
existing protected classifications.
The bill is solely an anti-discrimination measure: It does
not call for any employee entitlements or any additional leave
related to family responsibilities. The bill also has no
effect on current law that prohibits familial status
discrimination in housing.
2. Familial status: defining a complex phrase
Currently, "familial status" is recognized in the housing
provisions of Fair Employment and Housing Act (FEHA) as a
characteristic of a protected class. Familial status, under
Section 12955.2 of the Government Code, means an individual
under 18 years of age who resides with a parent or another
person with custody of the under-age person or with the designee
of the parent or person with custody by written consent. The
"familial status" protections provided by FEHA also apply to a
pregnant individual who is under 18, or who is in the process of
securing legal custody of a minor, or who is in the process of
being given care and custody of a minor by a state or county
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agency.
In the context of the workplace, this bill would define
"familial status" to mean "an individual who provides medical or
supervisory care to a family member," and "family member" would
be defined as:
"a child as defined in Section 3302 of the Unemployment
Insurance Code."
In turn, the Unemployment Insurance Code defines "a child" as
"a biological, adopted, or foster son or daughter, a stepson
or stepdaughter, a legal ward, a son or daughter of a domestic
partner, or the person to whom the employee stands in loco
parentis."
This definition is taken from that section of the Paid Family
Leave provisions of the Unemployment Insurance Code. These
provisions allow the payment of "wage replacement benefits"
under the state's temporary family disability insurance for a
period of six weeks to workers who take time off work to care
for a seriously ill child, parent, spouse, domestic partner,
or to bond with a minor child within one year of birth or
placement for foster care or adoption.
Under this bill, an aunt who has taken over the care of a
niece or nephew, but who has not taken steps to be appointed
the legal guardian of the child, could be protected from
discrimination if she takes off work to take care of this
child and returns to work later to find her employment
terminated for no other reason than that she had taken leave
to fulfill her familial caregiving responsibilities, when
other employees were able to take leave for other purposes.
The aunt in this case would be an employee who is a "person
who stands in loco parentis" to the child. The burden of
proof generally used for all other employment discrimination
cases would apply to these types of cases. (See Comment 3.)
"a parent as defined in Section 3302 of the Unemployment
Insurance Code."
Thus, "a parent" would mean "a biological, foster, or adoptive
parent, a stepparent, a legal guardian, or other person who
stood in loco parentis to the employee when the employee was a
child."
"a spouse, which means the partner to a lawful marriage"
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This was also taken from Unemployment Insurance Code Section
3302. There is no definition of "spouse" in the Family Code.
"a domestic partner as defined in Section 297 of the Family
Code"
Family Code Section 297 requires registration of qualified
partners with the Secretary of State.
"a parent-in-law which means the parent of a spouse or
domestic partner"
"a sibling as defined in paragraph (c) of Section 362.1 of the
Welfare and Institutions Code."
Thus, "a sibling" is a child related to another person by
blood, adoption, or affinity through a common legal or
biological parent.
"a grandparent"
"a grandchild"
By including "grandparent" and "grandchild" in the definition
of "family member," this bill would sidestep the need to show
that an employee is a grandparent who stands in loco parentis
to a child or that the employee's grandparent stood in loco
parentis to the employee when the employee was a child.
This bill would prohibit familial status discrimination for an
individual providing "medical or supervisory care," which would
encompass many of the fact patterns of cases that have been
brought as "family caregiving responsibility" cases under the
five federal laws mentioned earlier. For example:
A single father who worked as a firefighter for 13 years and
who was in line for a promotion was passed over because of his
family responsibilities. He was criticized for trading work
shifts - which was permitted under employer policy - to cover
his child care needs. A jury verdict in his favor was
overturned by the appellate court, but the court also stated
that discrimination based on familial status was not illegal
under FEHA. The firefighter had sued for discrimination on
the basis of marital status, and the court held that did not
apply in his case. (Tisinger v. City of Bakersfield (2002)
Cal.App.Unpub. LEXIS 3560.)
A truck driver for Albertsons took several months off of work
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to provide assistance and comfort for his father who became
severely depressed after the employee's sister was murdered.
When the employee tried to return to work he found out he
would have to start over as a probationary employee with no
seniority. He claimed his circumstances were covered by the
Family and Medical Leave Act of 1993. Viewing the evidence
most favorably for the employee, the court found enough to
create a triable issue of fact warranting a trial. (Scamihorn
v. General Truck Drivers, Office, Food and Warehouse Union,
Local 952 (9th Cir. 2002) 282 F.3d 1078.)
The court upheld a district court's finding of discrimination
in a case involving a pregnant woman who was not hired as a
result of her potential employer's fear that she would take
family leave. (Wagner v. Dillard Dept. Stores (4th Cir. 2001)
17 Fed. Appx. 141.)
A male trooper with the state police sought to take leave
under his employer's "nurturing leave" policy for primary
caregivers. His employer told him that "God made women to
have babies and, unless [he] could have a baby, there is no
way [he] could be primary care[giver]," and that his wife had
to be "in a coma or dead" before he could qualify as a primary
caregiver under the employer's policy. (Knussman v. Maryland
(4th Cir. 2001) 272 F.3d 625.)
3. Advantages of a FEHA action vs. action based on federal
statutes
As discussed above, discrimination cases have been brought by
employees using existing federal statutes, that, while providing
remedies for some form of discrimination, do not directly
address an employee's status as a family caregiver as a
protected class. (See Title VII of the Civil Rights Act of 1964
(42 U.S.C.S. Sec. 2000e); the Pregnancy Discrimination Act (42
U.S.C.S. Sec. 2000e(k)); the Family and Medical Leave Act of
1993 (29 U.S.C.S. Sec. 2601 et seq.); the Americans with
Disabilities Act of 1990 (42 U.S.C.S. Sec. 12101 et seq.); and
the Equal Pay Act of 1963 (29 U.S.C.S. Sec. 206).) Instead,
these employees have had to try to fit their circumstances into
narrow definitions in the statutes, or to ask the courts to
apply decisional law in other jurisdictions to their case, to be
able to fashion some remedy. While some of the cases were
successful, many have not been as successful because of the
difficulty of fitting facts to a statute not designed for that
type of protection.
This bill would address these difficulties by creating a direct
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prohibition against discrimination on the basis of familial
status under the Fair Employment and Housing Act.
Attorneys have relied on Title VII of the Civil Rights Act of
1964 to challenge employers' unfair treatment of family
caregivers in the workplace. Title VII covers all public and
private employers with 15 or more employees, and prohibits
employment discrimination based on race, color, religion, sex or
national origin, and applies to all aspects of the employment
relationship, including hiring, compensation, training,
benefits, working conditions, discipline, promotion, and
termination.
However, California's antidiscrimination statutes under FEHA,
while providing more protection than even Title VII, also
provide for a longer statute of limitations for filing a
complaint and a longer period of time for filing a complaint in
court after receipt of a right to sue letter. (Gov. Code Sec.
12965 et seq.)
The addition of familial status as a new basis for the
prohibition against discrimination will probably result in more
workers providing familial caregiving because their jobs would
no longer be jeopardized solely due to this commitment to
family. It should be noted that an employee who brings a
challenge to an employer's policy that results in an adverse
employment action will have to prove his or her case in the same
manner as other protected classes by showing disparate
treatment, hostile work environment, constructive discharge,
retaliation, and a disparate impact, among others. Further, the
current burden of proof, and the shifting of the burden as a
case moves through the process, will apply.
4. Other state statutes providing familial status protection
The University of California-Hastings Center for Worklife Law
issued a study (Study) on laws prohibiting family caregiver
discrimination, which identified "63 local laws in 22 states
that go beyond state and federal law to expressly prohibit
discrimination at work against those who are also caregivers at
home." (Stephanie Bornstein, Robert J. Rathmell, Univ. of Cal.
Hastings Center for Worklife Law, Caregivers as a Protected
Class?: The Growth of State and Local Laws Prohibiting Family
Responsibilities Discrimination (Dec. 2009), p. 1.)
In particular, the Study notes several states that provide
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various levels of family caregiving status protections as
follows:
Alaska's state employment antidiscrimination law includes
"parenthood" as a protected classification in order to prevent
discrimination in employment because of parenthood. (See
Alaska Stat. Sec. 18.80.220(a).)
The District of Columbia (D.C.), in its Human Rights Act,
includes the term "family responsibilities" as a protected
classification in its employment antidiscrimination law.
Under D.C. law, family responsibilities means "the state of
being, or the potential to become, a contributor to the
support of a person or persons in a dependent relationship,
irrespective of their number, including the state of being the
subject of an order of withholding or similar proceedings for
the purpose of paying child support or a debt related to child
support." (D.C. Code Ann. Secs. 2-1401.01, 2-14101.02,
1-2502(12).)
Connecticut's employment antidiscrimination provisions
prohibit employers from requesting or requiring employee
information related to "familial responsibilities" unless the
information is directly related to a bona fide occupational
qualification. (Conn. Gen. Stat. Sec. 46a-60(a)(9)). Unlike
the Alaska and D.C. statutes, this is not a general
prohibition against employment discrimination on the basis of
familial responsibilities, but rather a limitation on an
employer's right to collect personal information that could be
used for a discriminatory purpose.
New Jersey has enacted a regulation, which accompany the
antidiscrimination statutes, that expressly prohibit state
(but not private) employers from discriminating against their
employees based on familial status. (N.J. Admin. Code Sec.
4A:7-3.1(a).) The regulation prohibits not only
discriminatory acts and harassment based on familial status,
but also retaliation for participation in the complaint
process. (N.J. Admin. Code Sec. 4A:7-3.1(h).)
In addition to state laws, the Equal Employment Opportunity
Commission released a guideline regarding unlawful disparate
treatment for family caregivers under federal laws. The
guideline notes that "[a]lthough the federal EEO [Equal
Employment Opportunity] laws do not prohibit discrimination
against caregivers per se, there are circumstances in which
discrimination against caregivers might constitute unlawful
disparate treatment." (U.S. Equal Empl. Opp. Comm., Enforcement
Guidance: Unlawful Disparate Treatment of Workers with
Caregiving Responsibilities (May 23, 2007)
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[as of March 28,
2013].) This bill would provide clear statutory guidance to
California employers for family caregiver discrimination rather
than requiring employers to sort through various federal laws,
guidelines, and state regulations.
5. Opposition concerns
A coalition of opponents to this bill raises various concerns
about creating an additional characteristic under FEHA that
would have anti-discrimination protection. First, the coalition
argues that this bill would be a "job killer" because expanding
FEHA protections for "familial status" will dramatically
increase the amount of frivolous litigation and will hamper
California employers' ability to conduct business and manage
employees. Second, the coalition argues that the term "medical
care" in this bill is "undefined and therefore could be
liberally interpreted to include such tasks as administering
over the counter medication once a day or even driving a listed
family member to a doctor's appointment on a quarterly basis."
Third, the coalition argues that the term "supervisory care is
also ambiguous and would expand this proposed classification to
employees who are not actually providing any care to a covered
family member, but rather are 'supervising' the care the family
member receives." (Emphasis in original.)
The opposition appears to confuse protection from discrimination
for having family caregiving responsibilities, as provided under
this bill, with accommodation for family caregiving
responsibilities. Staff notes that this bill seeks to prevent
an employer from making an adverse employment decision against
an employee who has family caregiving responsibilities unrelated
to the employee's work. The First Circuit Court of Appeals
discussed discrimination when an employer takes an adverse
action against a female employee based on the assumption that,
because she is a woman, she will neglect her work
responsibilities in favor of her presumed childcare
responsibilities. The court noted that "[i]t is undoubtedly
true that if the work performance of a woman (or a man, for that
matter) actually suffers due to childcare responsibilities (or
due to any other personal obligation or interest), an employer
is free to respond accordingly, at least without incurring
liability under Title VII. However, an employer is not free to
assume that a woman, because she is a woman, will necessarily be
a poor worker because of family responsibilities." (Chadwick v.
Wellpoint, Inc., et al. (2009) 561 F.3d 38, 45.) Because Title
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VII does not explicitly prohibit family caregiver
discrimination, the Chadwick court based its holding on sex
discrimination. From a policy standpoint, an employer should
not be free to assume that any employee, male or female, will be
a poor worker because of family responsibilities. Accordingly,
this bill would codify the Chadwick court's common-sense
reasoning.
Additionally, the opposition argues that this bill will have a
broad application that will impact both large and small
businesses. These businesses will be subject to "costly
litigation based on the allegation that an employee who suffered
an adverse employment action provided familial medical or
supervisory care, was perceived as providing such care, or was
associated with someone providing such care." Staff notes that
the intent of this bill is to prohibit an employer's assumptions
regarding an employee who has family caregiving
responsibilities. This bill contains a clear definition of
"familial status," which an employee would have to show applies
to the employee, and the employee would then have to prove that,
based on the employee qualifying as a family caregiver, the
employer took an adverse action against the employee.
Lastly, the opposition argues that "California already protects
employees from discrimination on the basis of sex, pregnancy,
medical condition, mental disability, or physical disability . .
. provides employees with leave to care for the serious medical
condition of family members . . . [and] requires 'kin care' that
mandates an employee be allowed to use at least half of any
accrued sick leave to care for family members. These various
leaves and protections are in addition to those provided by
federal law. Given these existing protections, there is simply
no basis to include such a broad protected classification under
California law as proposed by SB 404, other than to increase
litigation opportunities."
In response, the author argues that although employees are
protected from specified discrimination, and an employee is able
to take leave to care for family members, there is no protection
for employees from being adversely affected by an employer's
assumption regarding the employee's caregiving responsibilities.
The author states that "[t]he effect of the bill is to prevent
an employer from unfairly using an individual's familial status
as a factor in an employment decision. This means that an
employer cannot, for example, refuse to hire a particular
applicant based on the employer's assumption that, because the
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applicant is a mother, she will not be committed to work; or,
for example, deny a promotion to a particular employee based on
the employer's assumption that, because the employee cares for
his elderly parent, he will not be reliable." As such, this
bill is aimed at prohibiting an employer's assumption that the
employee will not desire or be able to fully apply himself or
herself to the requirements of the job and subsequently take an
adverse action against the employee based on that assumption.
6. Reverse discrimination against employees who do not have
familial status
This bill would provide discrimination protection for
individuals who have family caregiving responsibilities in order
to combat assumptions by an employer that the employee is not
willing or able to do a job because of familial caregiving
responsibilities. However, there is no explicit prohibition
that provides protection from adverse employment decisions
against an employee who does not have familial status.
In practice, an individual who does not have caregiving
responsibilities could be passed over for promotion or denied
salary increases in favor of the employee who has caregiving
responsibilities because the employer believes the caregiving
employee needs more money to support such responsibilities.
Although this bill does not explicitly prohibit reverse
discrimination based on familial caregiving responsibilities, it
implicitly implies that an employer's decisions regarding each
employee will not be based upon familial caregiving status,
which would include not providing better schedules, wages or
salaries, or benefits to an employee who is a family caregiver.
7. Governor Schwarzenegger's veto of SB 836
This bill is substantially similar to the enrolled version of SB
836 (Kuehl, 2007). In vetoing SB 836 Governor Schwarzenegger
stated:
California has the strongest workplace laws against
discrimination and harassment in the country. These laws
provide workers necessary protections from unfair retaliation,
discipline, and termination for matters unrelated to job
performance.
Although I support these laws, expanding workplace protections
to include something as ambiguous as "familial status" is not
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appropriate. This bill will not only result in endless
litigation to try and define what discrimination on the basis
of "familial status" means, it will also unnecessarily
restrict employers' ability to make personnel decisions.
Support : 9 to 5 National Association of Working Women; American
Association of University Women; BreastfeedLA; California
Conference Board of the Amalgamated Transit Union; California
Conference of Machinists; California Immigrant Policy Center;
California Labor Federation, AFL-CIO; California Teamsters
Public Affairs Council; California Women's Law Center;
Communications Workers of America, AFL-CIO, District 9;
Engineers & Scientists of California; IFPTE Local 20; Family
Caregiver Alliance; International Longshore & Warehouse Union;
Labor Project for Working Families; Laborers Locals 777 & 792;
Los Angeles Alliance for a New Economy; Mexican American Legal
Defense and Educational Fund; National Association of Social
Workers, California Chapter; Professional and Technical
Engineers, IFPTE Local 21; Service Employees International
Union, California; The Center for WorkLife Law at UC Hastings
College of Law; UNITE-HERE, AFL-CIO; United Auto Workers, Local
2865; United Food and Commercial Workers Western States Council;
Utility Workers Union of America, Local 132
Opposition : Associated Builders and Contractors of California;
California Association of Joint Powers Authorities; California
Chamber of Commerce; California Chapter of the American Fence
Association; California Farm Bureau Federation; California Fence
Contractors Association; California Grocers Association;
California Independent Grocers Association; California League of
Food Processors; California Manufacturers and Technology
Association; California Restaurant Association; California
Retailers Association; Chambers of Commerce Alliance of Ventura
& Santa Barbara Counties; Civil Justice Association of
California; Culver City Chamber of Commerce; Engineering
Contractors Association; Flasher Barricade Association;
Fullerton Chamber of Commerce; Greater Bakersfield Chamber of
Commerce; Greater Fresno Area Chamber of Commerce; Marin
Builders Association; National Federation of Independent
Business; Palm Desert Area Chamber of Commerce; Rancho Cordova
Chamber of Commerce; Redondo Beach Chamber of Commerce; South
Bay Association of Chambers of Commerce; Southwest California
Legislative Council; Tulare Chamber of Commerce; Visalia Chamber
of Commerce
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HISTORY
Source : California Employment Lawyers Association; Equal Rights
Advocates
Related Pending Legislation : None Known
Prior Legislation :
AB 1999 (Brownley, 2012) See Background.
AB 1001 (Skinner and Ma, 2009) See Background.
SB 836 (Kuehl, 2007) See Background; Comment 7.
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